REPORT ON WITNESS PROTECTION IN KWAZULU-NATAL (KZN) BY DEPUTY ATTORNEY-GENERAL : NATAL
1. Introduction:
I have been requested to report on:
(i) problems experienced with witness protection in KZN, in general;
(ii) the history of a particular case where a decision was made by the Attorney-General (AG) about 18 months after the witness's admission to the programme.

2. The AG's role:
2.1 The AG is not responsible for the administration/management of the programme.

2.2 The AG must be informed of the admission of a person to the programme by submitting a copy of his/her written request to the AG, in compliance of section 185A(2) (b) of the Criminal Procedure Act (the Act).

2.3 The Act is silent as to what exactly the AG's responsibilities are upon receipt of such request, save to authorise the AG:
( i) to cause the termination of protection offered to a witness in certain circumstances [section 185A(3)];
(ii) to extend the person's protection for 30 day periods even though such person may choose to leave the programme.

3. To my mind, the following, specific problems established themselves in KZN:
3.1 The witness protect on programme has outgrown the mechanisms provided for witness protection in section 185A of the Act.
3.2 A lack of proper communication between parties involved.
3.3 Inaction subsequent to the disposal of cases.
3.4 Delays in the completion of investigations and the disposal of trials.
3.5 Staff shortages.

3.1 The witness protection programme has outgrown the mechanisms provided for witness protection in section 185A of the Act.
3.1.1 Section 185A requires of a witness seeking protection to apply for protection at a police station or prison. This is where the whole process commences. The official in charge of the police station or prison has the legal duty to submit a copy of the request to the AG.

3.1.2 When I became involved in witness protection in 1993/1994, the police investigator was an essential roleplayer in the whole process. The witness would seek assistance from the investigator, who in turn would identify a suitable police station where the admission process would take place.

3.1.3 Invariably these investigators personally reported to the AG's office and handed over the required documentation. Right from the outset there was direct communication between the investigator and AG's office regarding developments following upon the person's admission.

3.1.4 Since 1996 1 am not aware of a single witness in KZN who was admitted to the programme by the head of a police station or prison. Witnesses who needed protection were dealt with by designated SAPS members attached to specialised units (like the Investigation Task Unit in KZN) or the SAPS member who acted as Witness Protection CoOrdinator in the province.

3.1.5 At the same time the participation of investigators became less and was eventually confined only to report with the witness at the office of the SAPS member responsible for admitting the witness to the programme. Those entrusted with the statutory duty to submit written requests to the AG were not involved at all. Consequently the responsibility to submit written requests to the AG faded away amidst the many practical needs of witnesses the responsible officials had to attend to.

3.1.6 This deficiency caused an enormous backlog in the consideration of cases by the AG in 1997. At a meeting between the Director: Witness Protection (Mr Kleynhans), the AG and me on 19 May 1997 in Pietermaritzburg, it was discovered that there was a large number of witnesses carried by the Durban Witness Protection Co-ordinator's office of which the AG had no record. The reason for this, it transpired later, was because the written requests had not been forwarded to the AG's office.

3.1.7 I consequently met with the KZN Witness Protection Co-Ordinator in Durban on 23 May 1997 and arranged that copies of all written requests regarding persons who had been admitted since the Durban Witness Protection Office started functioning, be delivered at my office.

3.1.8 This was done on 29 May 1997. I received 94 new cases, in respect of which admission dated back well into 1996.

3.1.9 The AG does not only require a copy of the written request but also an affidavit by the investigator setting out various particulars which are necessary to check the information supplied by witnesses and to decide whether a person is indeed a material witness and in need of protection. If the information is insufficient, the investigator must be interviewed and the docket called for.

3.1.10 Unfortunately, in many of the new cases received, the requests did not reflect any particulars regarding the nature of the witness's evidence, the docket and the investigator. In addition affidavits by investigators were not filed. This necessitated that I embark upon a very time consuming exercise to identify and locate investigators and dockets.

3.1.11 I requested the assistance of the Durban Witness Protection Office staff in order to speed up the process of establishing proper communication with investigators. I had to learn that the Durban Witness Protection Co-Ordinator received virtually no feedback from investigators after the admission of witnesses. The staff were not unwilling to assist me in tracing investigators, but I got the clear impression that they battled to cope with an already overloaded system. A large number of persons were admitted during the course of 1997. There was only one Justice official who had to deal with all administrative matters, including finances. A few policemen had to deal with logistics regarding witnesses, including all transport requirements, accommodation, food and clothing arrangements.

3.2 A lack of proper communication between parties involved.
3.2.1 The backlog in 1997 was caused by a lack of proper communication between the AG's office and the administrators of the programme. As the number of witnesses placed on the programme increased, the Durban office established itself with, so I was informed, the assistance of the SAPS and the Deputy AG stationed in Durban who was, together with me and a third deputy in Pietermaritzburg, designated in October 1993 to deal with witness protection matters. When the Durban Deputy resigned in April 1996 SAPS members involved carried on admitting witnesses to the programme, but communication with the AG's office stopped.

3.2.2 Investigating officers neglect to stay involved after the admission of a witness to the programme. There is no feedback from them to either the AG's office or the Witness Protection Office. Presently only one police unit in KZN and a few other individual investigators report to me on developments affecting the position of witnesses. For the rest I must do the follow-up. This situation is burdensome, to say the least, when one has to deal with almost 150 investigators in pending cases at a given time. Their involvement is essential to keep track of developments relevant to the continued protection of witnesses.

3.3 Inaction subsequent to the disposal of cases
3.3.1 Section 185A(4)(b) stipulates that a prospective witness shall be relieved from protection on the day on which the criminal case concerned is concluded.

3.3.2 The termination of a witness's protection in such circumstances can clearly take place without the AG having to announce the fact that the case has been disposed of and the witness has to be released/relieved. All that is needed is prompt communication between the investigator and the witness protection office concerned.

3.3.3 In the past I had to establish whether cases were already finalised. Witnesses were then relieved only subsequent to my written notification to the witness protection office.

3.4 Delays in the completion of investigations and the disposal of trials:
These delays are symptomatic of the present crime situation in KZN, which has lead to overburdened criminal courts. It deserves mentioning, as it places strain on the witness protection budget and contributes to persons placed on the programme committing offences like assault or malicious injury to property whilst on the programme. It seems that, the shorter period witnesses remain on the programme, the less are the chances that idleness and frustration will lead to the commission of these offences.

3.5 Staff Shortages:
3.5.1 I am informed that KZN carries about 60% of all persons on the programme country wide.

3.5.2 I have already stated my opinion on the staff situation at the Durban Witness Protection Office (see para. 3.1.11 supra).

3.5.3 Although the 1997 backlog has been attended to and all 1998 cases are up to date, the situation in the AG's office has not been ideal. As already mentioned, the Durban Deputy responsible for witness protection resigned in April 1996.

3.5.4 This vacancy was only filled in 1998. This has now enabled the AG to reallocate witness protection cases from the Durban area to the Office of the Deputy AG, Durban. The second deputy in PMB who was responsible for witness protection retired in September 1995. When I am in court or away from PMB on other commitments, witness protection matters have to wait until I'm back in chambers. When the two present deputy vacancies in PMB are filled, the AG will once again have the capacity to attend to witness protection matters with greater expedition.

4. The "18 month delay" case:
4.1 The person concerned was admitted to the programme in August 1996. The AG only learned about his existence by the end of May 1997. The circumstances are set out in paragraph 3.1.6 supra.

4.2 I initially had no documents to work on. I was informed by the Durban Witness Protection Office that the file had been taken to Pretoria by Mr Kleynhans's predecessor. From Mr Kleynhans I received the particulars of the investigator.

4.3 I had a meeting with the investigator and received the docket comprising several lever-arch files, on 11 August 1997. It was clear that the investigation was far from complete. There was no statement from the witness filed in the docket. I learned from the investigator that a special investigation unit from the Department of Inland Revenue was also involved and that this unit caused the witness to be placed under protection.

4.4 Apparently the witness soon learned that I was looking into the matter, as he phoned me and insisted to be interviewed by me. I interviewed him on 14/08/97. He was extremely frustrated with the lack of progress in the investigation. I learned from him that he made a long recorded statement to an official attached to the Office for Serious Economic offences (OSEO) covering everything he knows and showing his value as a witness. On 13/8/97 I also interviewed the Inland Revenue officials involved.

4.5 With the assistance of Mr Kleynhans I got his OSEO statement on 20 August 1997. The transcript comprised one lever-arch file. I learned that, apart from taking the statement, there was no follow-up investigation done. A study of the transcript and dockets showed that many aspects had to be followed up before a decision could be taken whether he would be needed as a witness. The value of the information he disclosed was clear. The question was whether it could be substantiated. For this purpose documents had to be traced and checked, and a number of persons who could explain documents provided by the witness, had to be traced.

4.6 The investigation was not a simple one. I gave the investigator instructions regarding the further investigation. He had time until November 1997. By 4 December 1997 he informed me that he could not complete the further investigation. On 15 January 1998 the dockets were still not ready. By then however, it became clear to me, based upon consultations with the investigator that it was highly unlikely that any additional usable evidence would come to the fore. That being the case, a prosecution could not be based on the person's evidence.

4.7 On 16 January 1998 I informed the Witness Protection Office that the person would not be required to testify and had to be relieved from protection.

5. Remarks in conclusion:
Although the Witness Protection and Services Bill makes provision for a mechanism which would assist the Director in making a proper decision regarding the merits of a request, there is no provision for a mechanism by which the Director will be kept fully informed about subsequent developments which would enable him to efficiently exercise his responsibilities in terms of section 7(2), 7(3) and 7(4) of the Bill.

It is essential that an official who would be solely responsible for co-ordinating the flow of information from the investigator to the AG and the Director be put in place at the Director's office. This official will be a vital link between the investigator, AG and Director. His functioning will prevent the delays currently experienced as a result of the lack of communication explained in paragraphs 3.2 and 3.3 supra.

C.R. DE KLERK
DEPUTY ATTORNEY-GENERAL: NATAL
20/8/98